Not All Organic Food Labels Are Created Equal

Mr. Liu is a professor of law at the St. Mary’s University School of Law, and an expert in food and drug law.

The consumption of organic foods in the United States has skyrocketed to 10 times its size in 1997. (Photo by David McNew/Getty Images)

For those who spend time in the organic produce aisle at the grocery store, the alluring image of pristinely grown fruits and vegetables can drive consumers to fill their shopping carts with the best of intentions.

The consumption of organic foods in the United States has skyrocketed to 10 times its size in 1997 and is now valued at $35 billion. Unfortunately, the growth in sales has been accompanied by greatly expanded risks because America’s regulatory processes are riddled with loopholes.

Ironically, just when the public’s trust in the government seems to be at an all-time low, consumers have placed almost blind faith in the defective regulatory system that governs organic products. Consumers’ unwavering trust in the USDA Organic label probably comes from the assumption that the United States Department of Agriculture directly inspects farms and certifies organic products.

Unfortunately, this is not true.

Nor is it true that the agents who certify food as organic work directly for the USDA or that imported goods are subject to the same level of inspection as those grown at home.

Under the Organic Foods Production Act of 1990 (OPFA), the USDA accredits certifying agents, who then conduct organic certification. These certifying agents are not paid by the USDA but by the operations that they certify.

Of the 80 certifying agents, only 48 are based in the U.S.

Despite the fact that the USDA is not legally responsible for the conduct of certifying agents, it delegates to them a very important regulatory function, namely determining whether a product is genuinely organic.

Of the 80 certifying agents, only 48 are based in the U.S. Thirty-two others are based in foreign countries. Certifying agents have certified about 47,000 operations worldwide, of which fewer than half are located in the U.S. Once certified, the foreign operations are entitled to label their products with USDA Organic logos and freely enter the U.S. markets.

Recently, a USDA official claimed that imported organic products and domestically grown organics are subject to the same level of supervision. That claim is overstated, if not simply irresponsible.

The Organic Foods Production Act has no teeth in the foreign context

Even if certifying agents can set aside the inherent conflict of interest of being paid by the entities they are evaluating, there is no guarantee that foreign farms fully comply with U.S. law. Many of these countries have a serious problem with the rule of law, and foreign farmers often disregard their own national laws. How can Americans expect these foreign farmers to follow U.S. laws, with which it is usually costly to comply?

If a U.S. farmer knowingly labels its products as organic when they are not, that farmer will lose organic certification and have to pay $11,000 per violation. If a U.S. farmer makes a false statement to the USDA or its certifying agents, the penalty is up to five years in prison. If a foreign farmer commits the same offense, however, the same penalty is unlikely. The reason is simple: a foreign prosecutor has no obligation to prosecute the farmer for violating U.S. law, and a foreign judge will not apply the U.S. law in the foreign court. Without these penalties, the Organic Foods Production Act has no teeth in the foreign context.

It is naturally more difficult for the USDA to supervise either certifying agents or organic farms in foreign countries than those in the U.S. In 2010, the USDA was found to have failed to conduct onsite evaluations of three certifying agents located in Israel, Bolivia and Turkey for six years after it conditionally granted accreditations to these agents. The agents collectively certified 1,400 farms and producers. The USDA argued those regions were too dangerous to visit. While there was an option for the USDA to revoke the certifications, it never did so. During those six years, the products certified by those agents were freely circulating in the U.S. market.

A misleading label

In another example of the issues with monitoring foreign-made products, thousands of pets in the U.S. died in 2007 after eating melamine-tainted pet food produced in China. Under mounting public pressure, the U.S. Food and Drug Administration tried to conduct an investigation of the foreign site that was suspected of producing the tainted products. However, the FDA officials’ visa applications were delayed. By the time they reached the foreign site, everything had been removed and the ground deeply plowed. No trace of melamine was found. In the next crisis, will the USDA do a better job in obtaining visas from a foreign country than the FDA?

The USDA Organic label is supposed to be a signal of quality products. But when the USDA can no longer effectively supervise the certification process, its label becomes misleading. The USDA should certify organic farms through its own employees, and the farms should pay the USDA directly. The more intermediaries involved, like the current system of third-party certifying agents, the more difficulties the USDA will face in ensuring organic products grown at home and abroad live up to their promises.